Schilling's Take

I like Curt Schilling's blog even when I disagree with him. And today I disagree with him:

Roger has denied every allegation brought to the table. So as a fan my thought is that Roger will find a way in short order to organize a legal team to guarantee a retraction of the allegations made, a public apology is made, and his name is completely cleared. If he doesn’t do that then there aren’t many options as a fan for me other than to believe his career 192 wins and 3 Cy Youngs he won prior to 1997 were the end. From that point on the numbers were attained through using PED’s. Just like I stated about Jose, if that is the case with Roger, the 4 Cy Youngs should go to the rightful winners and the numbers should go away if he cannot refute the accusations.

I'm not a Clemens apologist, but the notion that (a) he has to sue in order to clear his name, which is the logical end game to Schilling's comments about Clemens getting a legal team together; or (b) he should have his records taken away is silly. We've heard this from several people already, but I'm surprised that Schilling of all people is playing this game.

Now, I think Clemens did steroids and I think he's probably lying about it now, but for the sake of argument, let's assume he isn't, and that Brian McNamee is slandering him. How, exactly, is Clemens supposed to prevail in a lawsuit? The potential causes of action are pretty straightforward: a defamation claim against Mitchell and/or MLB over the contents of the Mitchell report, or a defamation claim against McNamee for the statements he made to Mitchell themselves.

I won't bore you with legal stuff, but in order to win such a lawsuit, Clemens would have to establish that (1) the statements are false and; (2) that, because Clemens is a public figure, they were made with actual malice. Note, though, that "actual malice" in this context doesn't actually mean maliciousness as we know the term. It's more along the lines of the defendant knowing that what they were saying was false when they said it and not caring about it.

A hypothetical Clemens v. Mitchell is dead on arrival. Mitchell was merely reporting what others have said to him under circumstances which gave rise to an indicia of credibility (threat of false statements charges). Thus, even if the statements about Clemens in the report are false, there is no basis for a finding of malice here. Sure, I suppose you could concoct one if you're into that sort of thing (let's see; MLB is looking to torpedo salaries and smear players to help them with collective bargaining or something, so they intentionally and maliciously commissioned a report with the intent of generating false statements in an effort to smear Rocket). Um, yeah, good luck with that.

While there is a slightly better chance of making a case against McNamee in that, hey if he's lying he had to have known it at the time, the prognosis is still decidedly poor. After all, what evidence would Clemens bring to bear in such a lawsuit? Yes, McNamee is on record five years ago lying to the press about steroids, but under oath he could simply cop to lying then in order to protect Clemens and say that he obviously told the truth once he was under oath in front of Mitchell. Like I said the other day: he-said/he-said. Sure, Clemens could win such a case if the jury believed him instead of McNamee, but it's really damn risky, and the incentives for mounting such a case are small, even if he is telling the truth.

All that aside, Schilling knows what it's like to be in the public eye. He knows people say crap about you all the time, and he can't seriously expect someone in Clemens' position to sue every time someone lies about him (not that I think McNamee is lying). Remember the bloody sock controversy? I don't recall Schilling suing over that, even though it was every bit as much an attack on his integrity as the Clemens-steroids stuff. Would it be enough for Schilling if Roger Clemens offered $1M to anyone who could provide hard evidence that he took steroids? I somehow think it wouldn't be.

As for the records, Schilling strikes me as a man who reads history on occasion. He has to understand that you simply can't undo event A and expect events B, C, and D to have remained the same. Who were the "rightful winners" Curt? In 2001 the AL Cy Young runner-up was Mark Mulder. He wasn't in the Mitchell report, but half of his offensive and defensive support was. Is he legit? And while we're having this conversation, are you planning on returning your 1993 NL Championship ring because it was obtained with the help of Lenny Dykstra? Of course you're not, because playing the alternative history game is silly and ultimately leads us nowhere.

So again, Curt, while I love your blog and love your candor, in this case, you're wrong.